COURT OF APPEALS

DECISION

DATED AND FILED

December 18, 2019

Sheila T. Reiff

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

Court of Appeals. See WIS. STAT. § 808.10 

and RULE 809.62. 

Appeal No. 2018AP1607-CR Cir. Ct. No. 2014CF450

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT II

STATE OF WISCONSIN,

 PLAINTIFF-RESPONDENT,

 V.

JOSEPH-JAMAL R. BRANTLEY,

 DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for 

Kenosha County: BRUCE E. SCHROEDER, Judge. Affirmed. 

Before Neubauer, C.J., Reilly, P.J., and Gundrum, J.

Per curiam opinions may not be cited in any court of this state as precedent 

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3). 
No. 2018AP1607-CR

2

¶1 PER CURIAM. Joseph-Jamal Brantley appeals from a judgment 

convicting him after a jury found him guilty of party to a crime (PTAC) firstdegree reckless homicide with a dangerous weapon, PTAC first-degree recklessly 

endangering safety with a dangerous weapon, PTAC armed robbery, and carrying 

a concealed weapon. He also appeals from an order denying his motion for 

postconviction relief, in which he alleged a Brady1 violation and prosecutorial 

misconduct against then Kenosha County District Attorney Robert Zapf. His 

arguments are unpersuasive. We affirm.

I. Facts

¶2 In April 2014, on behalf of Brantley and Markese Tibbs, Brandon 

Horak arranged a marijuana “buy” from Anthony Edwards through Edwards’ 

cousin, Jacob Lang. Horak believed Brantley’s and Tibbs’ true plan was to rob 

Edwards. Brantley and Tibbs approached Edwards in his vehicle. Someone

demanded that Edwards surrender the bag of marijuana he had on his lap. Tibbs 

later testified that Brantley snatched it and Edwards began to drive off. One of the 

men shot at him. A bullet punctured Edwards’ lung; he died shortly after.

¶3 The ensuing investigation implicated Brantley and Tibbs in the 

robbery and murder. While executing a search warrant over two days at the house 

where they were arrested, police found a .22-caliber bullet and Tibbs’ Illinois 

identification card in a backpack and a .32-caliber, not .22-caliber, revolver above 

a ceiling tile. Brantley later was determined to be a “possible contributor” to the 

 

1

 See Brady v. Maryland, 373 U.S. 83 (1963).
No. 2018AP1607-CR

3

three-person DNA mixture found on the gun. Tibbs was excluded. A .32-caliber 

bullet matching the revolver was recovered from Edwards’ body. 

¶4 A six-day jury trial commenced on Monday, February 23, 2015. At 

the start of trial on Day 5, Friday, February 27, Zapf advised the defense and the 

court of the misconduct of a Kenosha Police Department (KPD) officer involved 

in the investigation, Officer Kyle Baars. The parties agreed to stipulate that the 

defense was not informed until the morning of Day 5 that Baars had planted 

Tibbs’ ID card and a .22-caliber bullet into the backpack, which was then placed 

into evidence. The court immediately adjourned the trial to allow the defense to 

examine the new information.

¶5 On Day 6, the following Monday, March 2, Brantley called Baars as

a witness. Baars testified that he came into possession of Tibbs’ ID card sometime 

during either Tibbs’ transport to the police station or his booking, and pocketed it. 

He admitted that when he returned the next day to assist in a second police search

of the house where Tibbs and Brantley had been arrested, he planted the ID card 

and the .22-caliber bullet—actually taken from his own residence—in a backpack, 

told fellow officers that he discovered them there, and allowed the items to be 

photographed and collected as evidence. Baars admitted that he resigned because 

of the misconduct. He also testified that he had no dealings with Brantley during 

the course of the investigation. The defense then rested. 

¶6 Brantley moved to dismiss alleging “outrageous government

conduct” based on Baars’ testimony and the fact that the prosecution had not 

brought it to the defense’s attention until nearly the end of trial. Observing that 

outrageousness should be judged by an entire governmental reaction, not by the 

“errant behavior of a rogue police officer,” the court took Brantley’s motion to 
No. 2018AP1607-CR

4

dismiss under advisement pending the jury’s verdict. Before the court instructed

the jury, Zapf informed them of the parties’ stipulation. The jury found Brantley 

guilty on all counts.

¶7 Post verdict, Brantley moved for judgments of acquittal 

notwithstanding the verdict based on outrageous government conduct or, in the 

alternative, for a new trial, contending Zapf’s failure to timely disclose Baars’ 

misconduct and resignation was a Brady violation. 

¶8 Brantley argued that KPD’s late disclosure, and Zapf’s subsequent 

failure to share the evidence until Day 5 of trial, was “outrageous.” After an 

evidentiary hearing, the court disagreed. It found that the jury ultimately had a 

chance to consider the impact of Baars’ actions, which it deemed irrelevant and 

not exculpatory vis-à-vis Brantley, and that it could not see how earlier disclosure

would have altered anything. Concluding there was no Brady violation, the court

denied the motion after the April 27, 2015 hearing. 

¶9 On January 31, 2018, Brantley moved for postconviction relief 

seeking reversal of his conviction and forty-year sentence, asserting the pretrial 

failure to disclose the Baars information was a Brady violation and constituted 

prosecutorial misconduct. 

¶10 In his motion, Brantley pointed to post-trial disciplinary 

proceedings, namely the Office of Lawyer Regulation’s (OLR) three-count 

complaint against Zapf stemming from Brantley’s case. It alleged violations of 

SCR 20:3.3(a)(1), SCR 20:3.4(b), and SCR 20:8.4(f), and WIS. STAT.
No. 2018AP1607-CR

5

§ 971.23(1)(h) (2017-18), the criminal discovery statute.2 The referee concluded 

that the OLR proved the allegations in two counts. Office of Lawyer Regulation 

v. Zapf, 2019 WI 83, ¶1, 388 Wis. 2d 1, 930 N.W.2d 202. As will be discussed 

below, the supreme court ultimately disagreed that any violations had been 

established and dismissed the complaint, both after the circuit court’s ruling on 

Brantley’s postconviction motion and briefing in this appeal. Id., ¶2.3

¶11 The court denied Brantley’s motion. It found that, even had the 

prosecution disclosed Baars’ evidence-planting to the defense before trial, the 

bullet and ID card evidence was irrelevant as to Brantley and exculpatory only to

Tibbs; indeed, the .22-caliber bullet was wholly irrelevant because Edwards was 

shot with a .32-caliber bullet. It further found that, as the matter was fully 

disclosed at trial, albeit near the end, the jury heard Baars admit his misconduct 

and resignation under oath. The court concluded there was no basis for Brantley’s 

claim of taint of the entire investigation and prosecution and that he did not 

establish a reasonable probability of a different outcome. Brantley appeals.

II. Brady Violation

¶12 Brantley first argues that KPD’s and Zapf’s failure to promptly 

disclose serious police misconduct violated his right to due process because the 

inability to present evidence of the cover-up undermined his constitutional right to 

 

2

 All references to the Wisconsin Statutes are to the 2017-18 version unless noted.

3

 Appellate briefing was complete on April 18, 2019; the supreme court filed its decision 

on July 10, 2019. The parties’ briefing thus was not based on the supreme court’s decision and 

neither party requested to supplement their brief after the supreme court’s decision. We therefore

largely address the parties’ arguments as set forth in their briefs, making note of the supreme 

court’s conclusions where appropriate.
No. 2018AP1607-CR

6

a fair trial. He also alleges a violation of WIS. STAT. § 971.23(1)(h), which 

mandates that the district attorney shall disclose to the defense any exculpatory 

evidence within a reasonable time before trial. 

¶13 “[T]he defense has a constitutional right to all material exculpatory 

evidence in the hands of the prosecutor.” State v. DelReal, 225 Wis. 2d 565, 570, 

593 N.W.2d 461 (Ct. App. 1999); see also Brady, 373 U.S. at 86. The prosecutor 

has a duty to disclose such evidence even absent a formal request by the accused

and encompasses impeachment evidence and evidence “known only to police 

investigators and not to the prosecutor.” Strickler v. Greene, 527 U.S. 263, 280-

81 (1999) (citation omitted). Thus, to comply with Brady, “the individual 

prosecutor has a duty to learn of any favorable evidence known to the others 

acting on the government’s behalf in this case, including the police.” Kyles v. 

Whitley, 514 U.S. 419, 437 (1995). 

¶14 To establish a Brady violation, a defendant must show that: (1) the 

State suppressed the evidence in question; (2) the evidence was favorable to the 

defendant, either because it was exculpatory or impeaching; and (3) the evidence 

was material to the determination of the defendant’s guilt or punishment. 

Strickler, 527 U.S. at 280. Evidence is not material under Brady “unless the 

nondisclosure was so serious that there is a reasonable probability that the 

suppressed evidence would have produced a different verdict.” Strickler, 527 

U.S. at 281.

¶15 Whether the State violated a defendant’s right to due process under 

Brady is a question of constitutional fact that we review independently, see

DelReal, 225 Wis. 2d at 571, but we review the underlying historical facts of the 

case using the clearly erroneous test, State v. Sturgeon, 231 Wis. 2d 487, 496, 605 
No. 2018AP1607-CR

7

N.W.2d 589 (Ct. App. 1999). We also apply the clearly erroneous test to the trial 

court’s finding that the result of the trial would not have been different. State v. 

O’Brien, 223 Wis. 2d 303, 322, 588 N.W.2d 8 (1999).

¶16 Brantley’s argument that the State violated the first Brady prong by

suppressing the Baars evidence fails. While the disclosure was not made until the 

morning of Day 5, a Friday, the court adjourned the trial early that day to give 

Brantley time to assess the evidence, issue subpoenas, and tailor its defense if 

necessary. The jury heard Baars’ full sworn testimony on the following Monday. 

¶17 Brantley’s argument also fails the second prong. The court’s finding

that the Baars evidence was not exculpatory of Brantley is not clearly erroneous. 

The ID belonged to Tibbs, so it had no bearing on Brantley’s defense, and 

identification of Tibbs as involved in the homicide of Edwards was not an issue. 

The bullet that killed Edwards was a .32 caliber bullet, and the gun that fired that 

bullet was recovered the day before the search in which Baars was involved.

¶18 As to the third prong, Brantley did not establish that KPD’s and 

Zapf’s late disclosure of the evidence impacted the integrity of the investigation as 

to him. The court thus reasonably concluded that the evidence was not material, 

as there was no reasonable probability that, had the evidence been disclosed 

earlier, the result of the proceeding would have been different. 

¶19 Brantley disagrees. He argues that in assessing materiality, the 

question is not whether he more likely than not would have received a different 

verdict with the evidence, but whether without it he received a fair trial, one

resulting in a verdict worthy of confidence. See Kyles, 514 U.S. at 434. He argues 

the delayed disclosure denied him a fair trial, as the evidence was not produced in

time for its effective use. See State v. Harris, 2008 WI 15, ¶63, 307 Wis. 2d 555, 
No. 2018AP1607-CR

8

745 N.W.2d 397. Specifically, he contends he was foreclosed from: gathering

facts and fully developing arguments about Baars’ conduct and what others, like 

KPD, did in response to it; altering his opening statement and examination of 

witnesses; better attacking the testimony of Tibbs, who testified for the State; and 

arguing to the jury that Zapf’s and KPD’s intentional cover-up significantly 

impeached the integrity of the entire prosecution.

¶20 Yet, we conclude that the late-disclosed evidence was not material as 

to Brantley, as the State provided compelling evidence of his guilt.

¶21 Horak testified to the following. Tibbs asked him, in Brantley’s 

presence, to “set up a stain,” which Horak knew to be a robbery. Horak arranged 

the “buy” with Lang. Brantley put a revolver in his jacket pocket when he and 

Tibbs left the house. A few minutes later Horak heard a “crack” and saw Brantley 

and Tibbs return to the house then soon emerge from a bedroom. Horak saw the 

gun on the bed and marijuana on a scale. A few minutes later Lang, Edwards’ 

passenger, texted Horak that “you literally just killed my cousin.” Horak told 

Brantley, “I think you just killed that man,” and Brantley replied, “No. I shot, and 

I saw a spark, but there is no way I hit him.” Horak declined Brantley’s offer of 

$130 if he agreed not to go to the police.

¶22 Edwards was shot and killed by a .32-caliber bullet. Footprints in 

freshly fallen snow led police to the house where Brantley stayed. A .32-caliber 

revolver bearing Brantley’s DNA was found above a ceiling tile in a bedroom. 

¶23 Brandie Pie, the KPD evidence officer on the scene at the house,

photographed a pair of jeans. The bottoms of the pant legs were wet and there was 

$130 in the pockets. 
No. 2018AP1607-CR

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¶24 Edwards’ passenger, Lang, described two suspects to police and said

he saw the heavy-set one argue with Edwards, pull out a gun, and shoot him. 

Lang later tentatively identified them in photo arrays as Brantley and Tibbs, 

Brantley being the heavy-set one. He positively identified Brantley later, on 

seeing him in court at a hearing. 

¶25 Another person present at the house throughout the day testified that 

Brantley and Tibbs planned the robbery in his presence and that, after they 

returned, he saw marijuana on a scale in the bedroom.

¶26 Tibbs, who by this time had pled no contest, testified to the 

following. Horak volunteered to find a marijuana seller because they were out of 

it. Tibbs and Brantley agreed to go in halves on it but he, Tibbs, did not know the 

cost or amount, although “[e]verybody kind of knew” a robbery would be 

committed. At Edwards’ car, Brantley began arguing with Edwards about the 

quality of the marijuana; another car approached so Tibbs and Brantley began 

walking away in opposite directions. When the car was out of sight, he and 

Brantley returned to Edwards’ car. Brantley said he had no money to purchase the 

marijuana. In Tibbs’ “peripheral vision,” he saw Brantley pull out a gun, put it to 

Edwards’ head and say, “Let me get that,” then take the bag of marijuana from 

Edwards’ lap. As Tibbs began walking away, he heard the car pull away and the 

gunshot. He and Brantley fled. Once back at the house, Brantley changed his 

clothes. When Horak came into the bedroom and told them about Lang’s text, 

Brantley admitted shooting toward the car.

¶27 Brantley argues that Zapf delayed disclosure because Tibbs was a 

necessary cog in the conviction wheel. He contends the Baars evidence, if timely 

disclosed, could have both dissuaded Tibbs from testifying for the State, thus 
No. 2018AP1607-CR

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jeopardizing the State’s case against Brantley, and persuaded Tibbs to take his 

own case to trial on a theory of a possibly corrupt investigation. Brantley suggests 

that Zapf had an interest in Tibbs’ case because he was the prosecutor there as 

well. These theories do not persuade us that the KPD investigation, even if tainted 

as to Tibbs, spilled over into a questionable ambition to convict Brantley, or that 

the delayed disclosure was material. 

¶28 Given the other evidence against Brantley, Tibbs’ testimony was not 

as necessary for conviction as Brantley makes out.

4

 It had credibility limitations, 

as it was peppered with assertions of poor recollection, inconsistencies, and 

implausibilities, such as his claim that he never discussed with Horak or Brantley 

the cost or amount of the marijuana or the plan to rob Edwards. He also 

acknowledged that he initially lied to police and that he hoped his testimony 

against Brantley would gain him consideration in his own upcoming sentencing. 

¶29 Brantley stresses that he believes a pervasive cover-up infected the 

investigation and prosecution of his case. There is no proof, however, that police 

were even aware of Baars’ actions when they gathered evidence at the scene that 

implicated Brantley. He points to no evidence that the integrity of the entire 

prosecution was undermined. We are persuaded that the evidence was not 

material as to Brantley, as there is no reasonable probability that, had the Baars 

evidence been disclosed earlier, the result of Brantley’s trial would have been 

different. The court’s conclusion in that regard is not clearly erroneous. Brantley 

has not established a Brady violation.

 

4

 Tibbs initially moved to withdraw his plea, but after discovery related to the police investigation 

was conducted, Tibbs withdrew his motion and allowed his conviction and sentence to stand. 
No. 2018AP1607-CR

11

¶30 Moreover, we need not decide whether the State violated WIS. STAT.

§ 971.23(1)(h) by not producing the Baars evidence “within a reasonable time 

before trial,” because any error was harmless. The court sua sponte adjourned the 

trial early on Friday morning to allow Brantley time to evaluate the evidence and 

adjust his defense accordingly before the trial resumed on Monday. We are 

satisfied that the beneficiary of the error, here, the State, established “beyond a 

reasonable doubt that the error complained of did not contribute to the verdict 

obtained.” State v. Martin, 2012 WI 96, ¶45, 343 Wis. 2d 278, 816 N.W.2d 270

(citation omitted).

¶31 Finally, as noted above, the OLR filed a three-count complaint 

against Zapf stemming from Brantley’s case, including that Zapf violated SCR 

20:8.4(f), which makes it professional misconduct to violate a statute regulating 

the conduct of attorneys, here, the criminal discovery statute, WIS. STAT.

§ 971.23(1), by not disclosing exculpatory evidence before trial. Zapf, 388 

Wis. 2d 1, ¶44. The supreme court found that Zapf did not violate the criminal 

discovery statute. Id. In so holding, the court agreed that the “presence of a .22 

caliber bullet had no relevance to Tibbs’ or Brantley’s involvement in Edwards’ 

homicide, and the failure to disclose the introduction of that bullet does not 

undermine in any way our confidence in Tibbs’ conviction following entry of his 

guilty plea or in Brantley’s conviction following his trial.” Id., ¶75. 

III. Prosecutorial Misconduct

¶32 Brantley next asserts that Zapf manipulated the facts about Baars’ 

conduct at the crime scene to benefit the prosecution, constituting prosecutorial 

misconduct not harmless beyond a reasonable doubt. Brantley points to the 
No. 2018AP1607-CR

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OLR’s three-count complaint against Zapf regarding the case and that the referee 

found that he violated two rules of professional conduct. 

¶33 Whether prosecutorial misconduct occurred and whether such 

conduct requires a new trial is left to the discretion of the trial court. State v. 

Bembenek, 111 Wis. 2d 617, 634, 331 N.W.2d 616 (Ct. App. 1983). Prosecutorial 

misconduct violates due process if it “poisons the entire atmosphere of the trial.”

State v. Lettice, 205 Wis. 2d 347, 352, 556 N.W.2d 376 (Ct. App. 1996) (citation 

omitted). Reversal on this basis is drastic and should be approached with caution. 

Id. It is the defendant’s burden to establish that it occurred. State v. Harrell, 85 

Wis. 2d 331, 337, 270 N.W.2d 428 (Ct. App. 1978). 

¶34 The trial court rejected Brantley’s postconviction motion claim of

prosecutorial misconduct. The court examined the relevant facts, applied a proper 

standard of law, and reached by a rational process a conclusion a reasonable judge 

could reach. Lettice, 205 Wis. 2d at 352. We see no erroneous exercise of 

discretion.

¶35 As noted, the supreme court reviewed the OLR complaint and the 

referee’s report, and determined that the prosecutor did not violate the criminal 

discovery statute. 

¶36 Brantley also points to Count 2 of the OLR complaint alleging that, 

relative to Zapf’s examination of Officer Pie, he violated SCR 20:3.4(b), which 

states that a lawyer shall not “falsify evidence, counsel or assist a witness to testify 

falsely, or offer an inducement to a witness that is prohibited by law.” See Zapf, 

388 Wis. 2d 1, ¶46. Pie’s role was to record what the officers found during the 

second search of the house. Zapf called Pie as a witness on Day 4 before defense

counsel was aware of the planted evidence. He did not ask her about the 
No. 2018AP1607-CR

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backpack, Tibbs’ ID, or the .22-caliber bullet, but on cross-examination, she 

testified that she photographed and collected Tibbs’ ID and the .22-caliber bullet 

found inside a backpack. The gist of this charge against Zapf was that he should 

have asked clarifying questions after her cross-examination testimony and that her 

testimony on cross was the sole reason he made the belated disclosure the next day 

to the court and defense counsel, rather than pretrial. Id., ¶47. Nonetheless, the 

referee found no violation, and the supreme court affirmed that conclusion. Id. 

Specifically, the court stated that “[t]o the extent that Officer Pie answered 

questions about those items on cross-examination that might have contributed to 

defense counsel having an inaccurate understanding of how those items had been 

found, Attorney Zapf took steps as soon as practicable to correct any 

misimpression defense counsel or the court may have had.” Id., ¶83.

¶37 Count 3 alleged, and the referee concluded, that the OLR proved by 

satisfactory evidence that Zapf’s late disclosure to the court violated SCR 

20:3.3(a)(1). That rule provides that a lawyer shall not knowingly make a false 

statement of fact or law to a tribunal or fail to correct a false statement of material 

fact or law previously made to the tribunal by the lawyer. Id.; Zapf, 388 Wis. 2d 

1, ¶48. The supreme court found that there was no violation. Again, we conclude 

that the circuit court did not err in coming to the same conclusion. 

By the Court.—Judgment and order affirmed.

This opinion will not be published. See WIS. STAT. RULE

809.23(1)(b)5.